SZFBO v Minister for Immigration

[2005] FMCA 1788

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFBO v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1788

MIGRATION – Refugee – Convention claims based on membership of a social group – family – s.91S – provision of information to the applicant pursuant to s.424A(1) – failure to take into account the applicant’s claims – actual and apprehended bias – no reviewable error – application dismissed.

Migration Act 1958, ss.91, 424A(1), 36(2), 424A(3)(b), 422B, 424(3)(a).

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs vWu Shang Liang (1996) 185 CLR 259
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Tin v Minister for Immigration &  Multicultural Affairs [2000] FCA 1109
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396
NADHof 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328
VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82
SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493
NAMW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 264
QAAC of 2004 v Refugee Review Tribunal[2005] FCAFC 92
Minister for Immigration and Multicultural and Indigenous Affairs v Jia [2001] HCA 17
ReRefugee Review Tribunal; Ex parte H [2001] HCA 28

Applicant: SZFBO

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3400 of 2004

Judgment of: Nicholls FM

Hearing date: 01 December 2005

Date of Last Submission: 23 November 2005

Delivered at: Sydney

Delivered on: 01 December 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. T. Reilly

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent in these proceedings.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs set in the fixed amount of $5000, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3400 of 2004

SZFBO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. This is an application filed in this Court on 22 November 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 6 October 2004, and handed down on 28 October 2004, to affirm the decision of a delegate of the respondent Minister made on

   
   

   14 May 2004 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.

2. The applicant is a citizen of Nepal who arrived in Australia on

   
   

   21 January 2004 and claimed to fear persecution in Nepal on the basis that he feared attack and death from the Maoist rebels in that country. The applicant's claim was that his father, who was a member of the Maoist rebels, was killed by them in 1999 after he left that group. The applicant claimed to fear harm from the Maoists because his family members had been attacked by them and that he was attacked, but not injured, in December 2003. Further, that his mother and sister had been kidnapped, but subsequently released by the Maoist rebels. The applicant also claimed that although both he and his brother had been attacked, but the police were not interested in assisting. The applicant’s claims are set out in his application for a protection visa reproduced at Court Book (“CB”) 1 to CB 24, and in particular at CB 17 to CB 20 and in his application to the Tribunal reproduced at CB 41 to CB 44. The applicant gave evidence to the Tribunal at a hearing conducted by the Tribunal on 22 September 2004 and the Tribunal's account of what occurred at the hearing is contained in its decision record at CB 58.5 to CB 63.3.

3. The Tribunal's “Findings and Reasons” are set out in its decision record at CB 66.4 to CB 69. The Tribunal understood the essential claim by the applicant to be that his father was a Maoist who deserted the organisation in 1999, and who was subsequently killed, and that the Maoist organisation had targeted the rest of the family, and that he feared that if he returned to Nepal he would be targeted and killed by the Maoists.  The Tribunal, noting that the applicant did not articulate it precisely in this way, saw the essence of his claim as being a fear of persecution because of his membership of his family as a particular social group. It found:

   1)That it is well established that “family” is capable of constituting a particular social group within the meaning of the Refugees Convention (CB 66 .7).

   2)But that if the applicant was to sustain a claim based on his membership of his family as a particular social group, it must be shown that the primary basis of the persecution is Convention related (CB 67.1).

   3)The Tribunal found on the evidence before it that it could see no such relationship to the Convention, and noted that persecution for “desertion” is not necessarily by itself a Convention reason unless it is otherwise able to be specifically related to a Convention reason. It could see no such connection (CB 67.2).

   4)The Tribunal at CB 67.3 noted the provisions of s.91S of the Migration Act 1958 (“the Act”). It relied on the applicant's own admissions, at the hearing before it, that the reason as to why his father was killed was because he deserted the Maoist group and that the reason why his family was subsequently targeted was because of his father's desertion, and that the Maoists now considered his family to be traitors. In these circumstances the Tribunal found the reason for the persecution was the desertion (as such), and that on its own this did not bring the harm feared within a Convention reason. In the same way, nor was the persecution of the applicant's family by the Maoists for being traitors, seen to be within the scope of the Convention (CB 67.6).

   5)On an alternative basis the Tribunal found that even if it accepted that the applicant’s father may have deserted the Maoists because of his ideological political beliefs, and that this was the basis of the desertion, that the subsequent persecution could in those circumstances be seen as caused by the father's political opinion, but that this still did not assist the applicant’s claims. The Tribunal gave reasons for this and found that the applicant’s claims of abductions were not plausible (CB 67.9), the applicant was able to return to Nepal (CB 68.4) and the applicant had a right to reside in India (CB 69.1).

   6)One of the reasons was that the Tribunal found that the applicant’s claims in relation to the claimed abduction of his mother and sister were highly implausible, lacked credibility, and both claims were rejected (CB 68.3).

   7)The Tribunal also noted (at CB 68.4) that in spite of the applicant’s allegations that he was at great risk of being persecuted by the Maoists if he returned to Nepal, he in fact did return there on two occasions. In particular the Tribunal noted that when the applicant obtained his visa to come to Australia he was in the United Arab Emirates and went to Nepal before coming to Australia. In the Tribunal’s opinion, in spite of the allegations and explanations that the applicant made, it found that this supported the view that the applicant was not at risk of being persecuted by the Maoists (CB 68.8). The Tribunal also found that it could see no evidence that the applicant faced any risk of persecution by the Maoists in the future. On this basis it was not satisfied that the applicant had a genuine fear of persecution at the hands of the Maoists should he return to Nepal (CB 68.9).

   8)The Tribunal specifically found further that on the evidence available to it, the applicant was entitled to enter and reside in India and that there was no evidence before it that the applicant faced persecution of any kind in India (CB 69.5).

4. The applicant’s originating application to this Court, filed on

   
   

   22 November 2004, made a number of claims which were expounded and amended by an amended application filed on 7 March 2005 where the applicant set out the following grounds:

   “1. The Tribunal erred in holding that the killing of the applicant’s father by the Maoists did not constitute persecution for a Convention reason.

   2. The Tribunal, having found that the Applicant’s brother was beaten because of their father’s desertion of the Maoists, failed to have regard to or deal with this finding in determining whether the applicant feared persecution and whether this fear was well founded.

   3. The Tribunal erred in holding that the applicant was not at any risk of being persecuted by the Maoists.

   Particulars:

   (a)there was no evidence to support the finding.

   (b)the finding was unreasonable in the Wednesbury sense.

   4. The Tribunal erred in holding that the applicant did not fear being persecuted by Maoists.

   Particulars:

   (a) the finding was unreasonable in the Wednesbury sense.

   5.The Tribunal erred in holding that the applicant is not a person to whom Australia owes protection obligations under the Refugees Convention and therefore does not satisfy the criteria in s.36(2) of the Migration Act for the grant of a protection visa.”

   The amended application also contains quite lengthy argument which I took to be in the nature of submissions from which the following additional grounds may be discerned:

   1)That the applicant was denied procedural fairness and/or the Tribunal breached s.424A of the Act in relation to the Tribunal's use of country information.

   2)That the Tribunal was biased.

5. At the hearing before me the applicant was unrepresented and appeared with the assistance of an interpreter in the Nepalese language.

   
   

   Mr. Reilly appeared for the respondents. The applicant stated that he had nothing further to add before me and that he was relying on the “submissions” that had been filed with the Court.

6. The applicant's first complaint is that the Tribunal erred in holding that the killing of the applicant’s father by the Maoists did not constitute persecution for a Convention reason. The applicant's “submissions” do not say how the Tribunal erred in this regard. Nor could the applicant assist at the hearing before me. At most the applicant's assertion (or that of the person who may have assisted the applicant in the drafting of this document) that “Chan” (presumably a reference to the High Court decision in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379) requires the Tribunal to decide if there is a real chance of persecution. The applicant states that a real chance exists even if there is a 10% chance, and that no risk to the applicant is acceptable. Further, that in a situation where there is any possibility of persecution, the applicant should be given the benefit of the doubt.

7. Clearly, the Tribunal's decision turned on its finding that on the evidence before it, it could not find a Convention nexus between the harm claimed, being specifically the harm to the father flowing from the father's act of desertion from the Maoist group, which was the basis of the subsequent fear of harm claimed by the applicant, and a Convention reason. An examination of the Tribunal’s decision record reveals that the Tribunal properly took into account the provisions of s.91S of the Act. But it must be emphasised that, whether in the context of a claim based on membership of a particular social group, or based on any other claimed Convention ground, the harm claimed clearly must have a nexus to one of the grounds enumerated in the Convention. The Tribunal's analysis (CB 66.5 to CB 69.5) was that the reason put forward for the claimed persecution was the father’s desertion from the Maoists and as such, in the absence of anything further, this desertion would not by itself be seen as a Convention reason. Accordingly, it found that the applicant’s fear of persecution did not relate to a Convention reason. This was clearly a finding that was open to the Tribunal on the material before it, and in this sense as Mr. Reilly submits, the applicant's complaint in this regard does not rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs vWu Shang Liang (1996) 185 CLR 259 at 272).

8. I also accept Mr. Reilly's submissions that on a plain reading of the Tribunal's decision record, and its reasoning at CB 67.7 and what follows, provides an alternative basis for the Tribunal's decision to affirm the refusal of a protection visa even on the assumption (which the respondent did not accept) that the applicant father's death, and what led to it, did have a Convention nexus. That is, that the claims of the abductions were not plausible and further, that the Tribunal found (at CB 68.9) that the applicant did not have a genuine fear of harm in Nepal on the basis that he returned to Nepal on two occasions, and that this supported the Tribunal's view that the applicant was not at risk of being persecuted by the Maoists. In any event the Tribunal found the applicant has a right to reside in India and on what was before it found no evidence that he faced persecution of any kind in India.

9. The applicant also complains that having found that the applicant’s brother was beaten because of their father's desertion, the Tribunal then failed to have regard to or to deal with this finding, in determining whether the applicant feared persecution, and whether this fear was well founded. The Tribunal's account of what occurred at the hearing conducted with the applicant clearly shows at CB 63.2 that the Tribunal discussed with the applicant, and that it noted with the applicant, that its acceptance that the applicant’s father may have been killed because he deserted the Maoists, and its acceptance that his brother may have been beaten up because of his father's action, did not in any way indicate that the applicant’s claims relating to “other matters” raised in his application had been accepted by the Tribunal. Clearly in its account of the hearing the Tribunal indicated that it accepted that the applicant’s brother may have been attacked and hospitalised.

10. The applicant now claims that the Tribunal did not deal with this issue in its “Findings and Reasons”. It is clear that there is no specific mention of the applicant’s brother in the Tribunal's “Findings and Reasons”. Mr. Reilly submits that the Tribunal's acceptance concerning the harm claimed by the applicant’s brother was sufficient to deal with this aspect of the applicant's claim, and that the Tribunal noted to the applicant that this did not mean that the applicant’s claims would be successful. The submission was that this was an approach that revealed no error. For the sake of enabling the reader to better understand the reasons for the Tribunal’s decision it may be of benefit for a Tribunal to collate its findings as a matter of presentation under the relevant headings (“Findings and Reasons”). But there is no error in a Tribunal choosing to place references to claims it accepts in other parts of its decision record, as this Tribunal has done.  The Tribunal, in organising its decision record, identifies all of an applicant’s claims, considers them, and deals with them by way of making clear findings on which its decision is based. In the specific case before me the Tribunal identified the applicant’s claim that his brother had been “beaten up because of his father.” It considered this particular claim and recorded that it told the applicant at the hearing that it accepted that the brother may have been beaten up because of his father but stated that this does “not in any way indicate” that the applicant’s other claims had been accepted by the Tribunal. The Tribunal deals with this issue further in its “Findings and Reasons” and provides an explanation for its comment at the hearing. The Tribunal can be seen to have dealt with the claim relating to the brother as it dealt with the family as a whole. At CB 67.5 the Tribunal notes that the applicant's admission as to the reason why his father was killed was because the father deserted the Maoists. The Tribunal also records the applicant's belief (provided by the applicant at the hearing with the Tribunal) that the reason why his family was being targeted was because his father deserted the Maoists who now considered his family to be traitors. The Tribunal then proceeded to determine that the underlying reason for the persecution was the desertion. As such, in the absence of anything else before it, the Tribunal found this did not relate to a Convention reason, and that therefore the applicant’s fear of persecution did not in turn relate to a Convention reason. The Tribunal’s reference in its analysis to the applicant's “family” certainly includes a reference to the applicant’s brother, who was put forward by the applicant, along with the applicant's mother and sister (and the applicant himself) as being part of the group, being his family, who were all subject to the claimed persecution. The Tribunal's subsequent finding was that the desertion by the applicant’s father was not in and of itself for a Convention reason, and that in the absence of anything else the applicant’s fear therefore did not relate to a Convention reason. The Tribunal accepted the brother may have been beaten by the Maoists, but it found that the brother (as a member of the family) was targeted because of the father’s desertion, and that the reason for the persecution was “the desertion as such”. On its own this did not constitute persecution for a Convention reason. This was sufficient to deal with the applicant's claim relating to his brother having been beaten by the Maoists. The Tribunal’s specific references to the claimed abduction of the applicant’s mother and sister in its “Findings and Reasons” in a context where there was no specific reference to the brother does not reveal error on the part of the Tribunal. The Tribunal dealt with the family (including the brother) and did not go any further with the brother because it had accepted that the brother had been beaten up. It did not accept that the mother and sister had been abducted and dealt separately and additionally with these claims.

11. I should note that where (as in this case) the social group relied upon is membership of a family, it is necessary for the Tribunal to have regard to s.91S of the Act. This section provides relevantly that a person who claims harm because he is a relative of a person who is targeted for a non-Convention reason does not come within the grounds for persecution found in the Convention. In the circumstances of what was before it, it was open to the Tribunal to find that there was no connection between the father’s desertion from the Maoists and a Convention reason.

12. The applicant also complaints that the Tribunal’s findings that the applicant was not at risk of being persecuted by the Maoists and that the applicant did not fear being persecuted by the Maoists, were findings that were unreasonable in the “Wednesbury” sense as recognised in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 as a basis for judicial review. The applicant appears to be trying to argue that these findings of fact were so unreasonable on the part of the Tribunal that they should not have been made. This is particularly so as the applicant also asserts that there was no evidence to support at least the finding that the applicant was not at risk of being persecuted by the Maoists.

1. On what is before me, I cannot see that this complaint is made out. The basis of the Tribunal's decision did not turn on a finding of whether the applicant was at risk of being persecuted by the Maoists, because of any action on his part or any reason other than his membership of his fathers family and the claim of the father’s desertion from the Maoists leading to the family being seen as traitors. Clearly as I have set out above, the Tribunal decision turned on the basis that the claimed persecution arising out of the father's desertion from the Maoist group was not linked to a Convention reason. On what was before the Tribunal this finding was open to it. It cannot be said that the finding was so unreasonable that no reasonable decision maker could have made it. Further, in relation to the claim that the Tribunal was in error in holding that the applicant did not fear being persecuted by Maoists, and I saw this as a reference to a fear if he should return to Nepal in the reasonably foreseeable future, the Tribunal clearly considered this issue and set out its consideration in its decision record, in particular at CB 68. The Tribunal clearly gives reasons for its findings in this regard which were open to it on the material before it, and I cannot see any error on the part of the Tribunal as now alleged in the amended application.

2. The applicant also complains that the Tribunal failed to disclose the particular “construction” it gave the information from the different independent sources on which it relied. Further, that such failure amounted to a denial of procedural fairness and natural justice. The lengthy extracts from the authorities in the applicant's amended application also could be said to support a complaint by the applicant that there was a breach of s.424A of the Act in relation to this information. In particular, the applicant complains that if the Tribunal was going to rely on country information about Nepal, and that this information was obtained from sources other than the applicant, then the applicant should have been informed, in advance, of the specific country information to be used “against” him, and that he should have been given an opportunity to respond, and that this did not occur at any time prior to the Tribunal making its decision. There are a number of issues relevant to this complaint:

   1)To the extent that the applicant is seeking to argue that, in the relevant statutory context, the Tribunal should have put its adverse thought processes to him for comment before making its decision, then there is clear authority that the Act does not impose any such obligation on the Tribunal. Clearly s.424A of the Act is concerned with knowledge of a fact or circumstance communicated to, or received, by the Tribunal. It is not concerned with the thought processes of the Tribunal which appear to be the applicant's real complaint before me. In the case of Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 Sackville J. said at [54]:

   “It follows that a subjective determination by the Tribunal that the applicant's account is or may not be credible does not enliven the obligation imposed by s.424A(1).  Thus, even if the Tribunal had not alerted the applicant to the possibility that her evidence might not be accepted at face value, its failure to do so would not have contravened s.424A(1).”

   Section 424A of the Act does not require the disclosure to an applicant of the Tribunal's view of the material before it, including its view that the material he has put forward is insufficient or implausible and that there are gaps or problems with the applicant's evidence, such as an inconsistency between versions of claims told at various stages. Such views do not constitute information in the sense referred to in s.424A(1) of the Act: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [25], NADHof 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [127] and VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82.

   2)In any event and including in any common law context, it is clear from the Tribunal's unchallenged account (that is, unchallenged by any evidence to the contrary) that what occurred at the hearing before the Tribunal (CB 58.5 to CB 63.2) is that a number of concerns that the Tribunal had with the applicant's evidence were put to the applicant during the course of the hearing:

   a)CB 59.2: The Tribunal put to the applicant inconsistencies in his claims.

   b)CB 59.5: The Tribunal pressed the applicant as to the reasons that the Maoists would “want” him, if his father had deserted as claimed and why given the applicant's answer the Maoists released his mother after they had kidnapped her. The Tribunal clearly put to the applicant that his explanation was not plausible.

   c)CB 60.6: The Tribunal asked the applicant why he returned to Nepal before coming to Australia if there was a risk of being abducted in Nepal as he had claimed and found the applicant's subsequent explanations as “hardly satisfactory”.

   d)CB 61.3: The Tribunal asked the applicant why the Maoists would abduct members of his family and then release them if indeed they were targeting his family and pressed the applicant with its concerns as to whether the mother and sister were in fact abducted at all.

   e)CB 63.2: The Tribunal noted with the applicant that its acceptance that the applicant's father may have been killed because he deserted the Maoist, and the acceptance that the brother may have been beaten up because of his father, did not in any way indicate that the applicant’s claims relating to the other matters raised his application had been accepted by the Tribunal.

   All of these above matters arose out of information that the applicant himself put to the Tribunal. The Tribunal’s account reveals that the applicant would have been put on notice during the course of the hearing as to the Tribunal’s view of critical elements of his claims. In the statutory context information provided by the applicant to the Tribunal (as in this case at the hearing) is exempt, pursuant to s.424A(3)(b), from the requirement to put such information to the applicant pursuant to s.424A(1).

   3)The Tribunal's decision record clearly shows that in relation to one set of independent country information (CB 65.8 to CB 66.4) dealing with the ability of Nepalese people to go and reside in India as a result of a treaty between India and Nepal, this was clearly put to the applicant and discussed with him at the hearing (CB 61.5).

   4)The application to the Tribunal for review was made on 3 June 2004 and the decision was handed down on 28 October 2004. In these circumstances clearly s.422B of the Act applies, and therefore s.424A of the Act relevantly is the exhaustive statement as to the circumstances in which the Tribunal is required to put information to an applicant for comment. In SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493 at [17] to [18] Branson. J., said:

   “[17] In my view the approach adopted by Lindgren and Hely JJ in NAQF and Wu respectively is, for the reasons given by their Honours, to be preferred to the approach adopted by Gray and French JJ in Moradian and WAJR respectively.

   [18] As s 424A deals with the obligation of the Tribunal to provide particulars of information to an applicant, there is no scope for a wider obligation to provide particulars of information to be implied into the Tribunal’s review process.”

   5)In relation to the applicant’s complaint based on s.424A of the Act, and the Tribunal’s use of independent country information, the applicant's amended application contains extracts from a number of cases going to the issue of what constitutes information and the circumstances in which information adverse to the applicant should be put to the applicant by the Tribunal pursuant to s.424A(1) of the Act. What the amended application does not focus on (or rather those who assisted the applicant in the drafting of the application) is the effect of s.424A(3)(a) of the Act on the requirements set out in s.424A(1) of the Act. The independent country reports relied on by the Tribunal are referred to in some detail in its decision record at CB 63.3 to CB 66.4. The sources of this information are reproduced at CB 71 to CB 116. It is clear that the material used by the Tribunal in the making of its decision, to the extent that the Tribunal relied on some of this information in making its decision, falls within the exception provided for in s.424A(3)(a) of the Act from the requirement to put such information to the applicant pursuant to s.424A(1) of the Act (see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal[2005] FCAFC 92). The information is clearly not about the applicant or another person.

   The applicant's complaint that he was denied procedural fairness or that there was a breach of s.424A in relation to the Tribunal’s use of independent country information for the reasons above does not succeed.

3. The applicant also complains that there was a demonstration of the apprehension of bias in the making of the Tribunal’s decision. In particular the applicant appears to say that the Tribunal's failure to disclose the particular construction it gave to information that it derived from different independent sources was the factor that demonstrated the Tribunal's bias. For the applicant’s benefit, I note that allegations of bias, whether bias, or the apprehension of bias, are very serious and must be supported by evidence. When such allegations are made by an applicant it implies that the Tribunal member by their attitude and conduct can be shown to have preset in their mind the ultimate outcome in the matter. An allegation of bias carries with it an onus that it must be distinctly made and clearly proved. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, [69], [71]-[72], [127]). The real question is whether the mind of the decision maker is open to persuasion. Further, alleged apprehension of bias must be reasonable to succeed. The standards of reasonableness are determined by reference to the apprehension of “a fair-minded lay observer or a properly informed lay person” observing the Tribunal processes (ReRefugee Review Tribunal; Ex parte H [2001] HCA 28, [27]-[32]). The applicant's complaint cannot be made out by relying on an alleged failure by the Tribunal to disclose its adverse thought processes to the applicant, or the allegation that the Tribunal failed to give the applicant certain independent information on which it relied. In any event, as set out above, the Tribunal was not required to expose its adverse thought processes to the applicant although in many critical respects that did happen. In relation to the information used by the Tribunal, it complied with its relevant obligations. In these circumstances no bias or apprehension of bias can be made out.

4. The applicant made claims that his father had deserted from a Maoist group in Nepal, and had been killed as a result of this and that the applicant's family had subsequently been targeted and harmed by the Maoists, and that the applicant was fearful of returning to Nepal for this reason. The Tribunal could find no Refugee Convention nexus between the claimed persecution arising out of the father's desertion, which it found was not necessarily itself derived from a Convention reason. In the alternative it found that even if the applicant's father had deserted the Maoists because of his ideological or political beliefs even this did not assist the applicant’s claims as critical aspects of the claims were not plausible and lacked credibility. The Tribunal also noted that the applicant's ability to return to Nepal on two occasions in spite of the allegations that he ran the risk of being abducted supported its view that the applicant was not a risk of being persecuted by Maoists. In any event it found that the applicant had a right to reside in India where there was no evidence that the applicant faced persecution of any kind. These findings were all open to the Tribunal on the material before it. I can see no error, let alone jurisdictional error, in the Tribunal’s decision. The Tribunal complied with the relevant statutory requirements in relation to the issue of information on which it relied and in any event, in many critical respects, brought both its concerns about the applicant’s evidence, and information subsequently relied on specifically to the applicant's attention at the hearing that it conducted with the applicant. There is no jurisdictional error in the Tribunal's decision. The application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Sybilla Waring-Lambert

Date:  24 January 2006